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Board Issues Decision in P& M Vanderpoel Dairy. Case No. 2013-CE-016-VIS

On August 28, 2014, the Board issued its decision and order in the above-entitled case.

This case arises from an unfair labor practice (ULP) charge filed on April 22, 2013 by Jose Noel Castellon Martinez alleging that Respondent, P&M Vanderpoel Dairy, violated the ALRA by firing him and four other workers on April 17, 2013, for engaging in protected concerted activity.

The workers at the dairy desired a raise and agreed that they would, as a group, approach Matthew Vanderpoel (Matthew), dairy manager, just after the day shift ended and just before the night shift began to request the raise. The workers decided that Lupe Hernandez (Lupe), who spoke English better than the rest of the group, would be the one to present their demand to Matthew. Lupe told Matthew that the workers wanted a $1.00 per hour wage increase. Matthew testified that Lupe told him that if the workers' demand for a wage increase was not met, they would quit. The four workers who testified at the hearing stated that they never told Lupe to say that they would quit.

After his discussion with the workers, Matthew called his father, dairy owner Mike Vanderpoel (Mike) who arrived at the dairy within about five minutes. The workers all testified that Mike was angry when he arrived, and that he began to yell at Noel Martinez. Mike asked “do you want your job tomorrow, yes or no?” Noel testified that he was initially so intimidated he was speechless, but after a moment he asked Mike why he was being singled out. Mike asked again “do you want your job, yes or no?” and then said “you can leave, you don’t have a job here anymore.” Then in front of the assembled workers, Mike called 911 to have law enforcement remove the workers from the dairy property. All of the workers left before the police arrived.

The Administrative Law Judge’s Decision

The Administrative Law Judge (ALJ) found that Respondent violated Section 1153(a) of the Act by discharging the workers for engaging in protected concerted activity.

The ALJ found that none of the workers told Lupe to tell Matthew that the workers would quit if they did not get the raise. On the other hand, the ALJ found that group’s spokesperson, Lupe, told Matthew in English that the workers would quit if they did not get the raise. The ALJ found that because the workers’ chosen spokesperson created the misunderstanding, the responsibility for the confusion rested with the workers. On the other hand, the ALJ found that Mike re-opened the question of whether the employees wanted to work by demanding that the workers either work or get out, and therefore, was obligated to take into account the possibility that the workers had changed their minds or that he had misperceived their true intent. The ALJ found that the workers did manifest an interest in keeping their jobs. The ALJ further reasoned that Mike’s hasty, angry preemptive conduct prevented the correction of the misunderstanding that the workers wanted to quit, and also led the workers to reasonably believe that they had been fired.

The ALJ rejected the Employer’s argument that the workers concerted activity was not protected because they stayed after work in a critical work area and essentially engaged in a “sit-down” strike. In support of his conclusion that the workers retained their protected status, the ALJ applied the factors set forth in Quietflex Manufacturing Co. (2005) 344 NLRB 1055, 1056-58, a case which analyzed which party’s rights should prevail in the context of an on-site worker protest. The ALJ then rejected the Employer’s argument that the failure of the workers to apply for unemployment insurance was evidence that they had quit and were not fired. In doing so, the ALJ stated that “the failure to seek unemployment benefits, especially in agriculture, where a large percentage of the workforce is undocumented, is an insufficient basis to justify an inference that the workers had quit their employment.” Finally, the ALJ rejected the Employer’s argument that the General Counsel’s failure to take declarations from the worker witnesses prior to the hearing violated Giumarra Vineyards, Corp. (1977) 3 ALRB No. 21. 

The Board Decision

The Board affirmed the findings of fact and conclusions of law of the ALJ, and responded to the parties’ exceptions and responses as summarized below. Member Rivera-Hernandez issued a concurring opinion and Chairman Gould issued a concurring and dissenting opinion.

The Board denied the Respondent’s request for oral argument because the Board found the parties’ briefs were sufficient for the Board to analyze the issues in this case; however, the Board admonished the General Counsel for making unsubstantiated, inflammatory accusations about Respondent’s counsel’s alleged racial motivations in her reply to the Respondent’s exceptions.

The Board rejected the Respondent’s argument that adverse inferences should be drawn from the General Counsel’s failure to call Lupe Hernandez as a witness, as nothing in the record indicated that Lupe Hernandez was not also available to be called as Respondent’s witness. With respect to Respondent’s argument that the ALJ improperly failed to allow testimony on the reason why the employees did not file for unemployment insurance, the Board agreed that a simple inquiry into whether or not the workers filed for unemployment insurance benefits is permissible, and generally, a respondent’s counsel should be able to ask a witness on cross-examination whether he did not apply for unemployment insurance because he quit. However, the Board agreed with the ALJ’s ultimate disposition of this issue, because during the hearing the examination of the witness quickly crossed over into the territory of the workers’ immigration status, and it was proper for the ALJ to stop this line of questioning.

The Board found that the facts did not support a finding that a sit-down strike or even a work stoppage occurred in this case, but rather the employees specifically chose to approach Matthew between shifts when no one was working. The Board disagreed that Quietflex Manufacturing Co., supra, 344 NLRB 1055, relied on by the ALJ, applies to this case, because Quietflex involved an on-site work stoppage.

The Board declined to revisit Respondent’s “trial by ambush” arguments, and affirmed the ALJ’s holding that the rule in Giumarra Vineyards, Inc., supra, 3 ALRB No. 21 and codified in Board regulation section 20236 and 20274, requiring worker witness declarations to be turned over to counsel only after the worker testifies, applies only if worker declarations are taken in the first place.

With respect to the notice and mailing remedy, the Board rejected Respondent’s argument that the one-year mailing requirement is punitive. The Board declined to give the Regional Directors the discretion to draft the Notice to Agricultural Employees in this case or future cases. As for the General Counsel’s proposed revisions to the Notice, the Board declined to adopt the proposed language in this case; however, the Board noted that in the future, it may consider whether the Notice language merits revisions.

In her reply to the Respondent’s exceptions the General Counsel urged the Board to hold that “[i]n the context of a meeting outside work hours in which workers are asking for better working conditions, statements that workers will quit if they do not get a raise should be seen…as a negotiating tactic and attempt to convince the employer to concede to the workers’ demand.” The majority opinion states that there is not a need to address the question of whether such activity is protected under the ALRA inasmuch as the ALJ ultimately rejected the argument that the employees had actually quit. Board Member Shiroma noted in a footnote that NLRB case law has held under analogous circumstances that where employees conditionally threaten to quit, the conduct is protected.

Board Member Hernandez-Rivera agreed with the result reached by the majority but wrote separately to express her view that Section 1152 of the ALRA protects employees who concertedly threaten to resign in support of legitimate demands concerning their terms and conditions of employment, and that the Board was required to so hold in this case. Member Rivera-Hernandez stated that the conclusion that the employees were terminated raised the distinct issue of whether the termination was unlawfully based upon the employees’ protected activity. She stated that, unless the majority found that the employer was motivated solely by the wage demand, which it had not explicitly done, the Board needed to determine either that the threat to quit is protected, in which case no further inquiry into motivation would be necessary, or that it is not protected, in which case a “dual motivation” analysis would be required. Member Rivera-Hernandez stated that her analysis was consistent with the ALJ’s opinion, which found the employees’ entire course of conduct to be protected, and was also consistent with NLRB authority holding threats to quit under analogous circumstances to be protected. Member Rivera-Hernandez noted that the Board is required to follow the applicable precedents of the NLRA and that failing to reach the issue of the protected status of the threat to quit failed to extend the protections of NLRB precedent to the agricultural employees and provide certainty to the parties involved. Member Rivera-Hernandez stated that by reaching this issue she would not discard the ALJ’s credibility determinations, which she would uphold in their entirety.

Board Chairman Gould wrote a separate opinion concurring with Member Shiroma’s opinion except insofar as it (1) discussed the so called right to threat to quit issue; (2) relied upon an “applicable precedent” analysis; and (3) discussed Quietflex Manufacturing Co., supra, 344 NLRB 1055 as “applicable precedent.” With respect to the General Counsel’s argument that the workers’ threat to quit as communicated through Lupe Hernandez was protected concerted activity, Chairman Gould dissented from the majority’s reasoning on this issue because the ALJ did not address or resolve this issue in his opinion and unnecessarily involved the Board in making findings inconsistent with or at variance with the ALJ. Chairman Gould stressed that the ALJ found that the retaliation in question arose because of a concerted employee protest over working conditions without any reference to or reliance upon the threat to quit. Further, the ALJ opinion did not cite to any relevant cases on the threat to quit issue, and the ALJ Order does not mention employer adverse treatment because of or interference with a threat to quit as activity which is to be prohibited. Significantly, the ALJ made credibility determinations through which he concluded that Mike Vanderpoel’s conduct made it impossible for the matter to be discussed. Chairman Gould observed that the ALJ did this through inferences, credibility determinations and his observation of the demeanor of the witnesses, and Chairman Gould emphasized that where demeanor and credibility and inferences drawn from them are at the heart of the ALJ’s decision as here, it is especially important for the Board to defer to the ALJ ruling and, in the process, conserve the Board’s own taxed resources, and avoid making the Board’s Order vulnerable at the stage of judicial review.

With respect to the majority’s emphasis that section 1148 of the ALRA requires that the Board “follow the applicable precedents of the National Labor Relations Act,” and because past NLRB case law has held that a conditional threat to quit is protected, and thus the Board was required rely on that case law, Chairman Gould opined that the majority opinion begs the question of how “applicable precedent” was to be defined. Chairman Gould stated that in any event, he was not compelled to propose an answer to the “applicable precedent” conundrum, given that the “applicable precedent” issue was not properly before the Board. Finally, Chairman Gould stated that he would want briefing from all of the parties before taking the step of relying on NLRB decisions from nearly 60 years ago which do not appear to have been relied upon in recent years by either the NLRB or the ALRB.

See P & M Vanderpoel Dairy (2014) 40 ALRB No. 8


Office of Administrative Law Approves Regulations To Implement Senate Bill 126

On May 2, 2012, the Office of Administrative Law (OAL) approved the regulations adopted by the ALRB on April 18, 2012, implementing Senate Bill 126 and filed the approved regulations with the Secretary of State. OAL also granted the ALRB's request that the regulations go into effect immediately upon filing, therefore the regulations are now in effect. On April 18, 2012, the Agricultural Labor Relations Board (ALRB or Board) adopted regulations to implement Senate Bill 126. That bill made various changes to the Agricultural Labor Relations Act. The Board had previously held a public hearing on January 20, 2012 on the proposed regulations, hearing oral comments and accepting additional written submissions. At its scheduled February 1, 2012 public meeting the Board voted to adopt the regulations with what were considered nonsubstantive changes in response to the public comment received. While the proposed regulations were pending review by the OAL, it came to the Board’s attention that some of the changes arguably could be termed “substantive” and thus may have required a 15-comment period. Accordingly, in order to ensure complete compliance with the letter of the rulemaking requirements of the Administrative Procedure Act (Gov. Code § 11340, et seq.), on March 21, 2012 the Board withdrew the rulemaking file from OAL and rescinded its February 1, 2012 adoption of the proposed regulations. The Board then issued a 15-Day Notice providing the public the opportunity to submit comment on the changes made. No comments were received.

Text of Amendments to Implement SB 126, as Adopted on April 18, 2012

Subsequent Histories Table

The Subsequent Histories Table has been updated to include Board decisions through Volume 38 (2012). The updated pages are page 40 and 41.

See Subsequent Histories Table for updated page.

2010 and 2011 Case Digest Supplements

The supplements to the ALRB Case Digest for Volume 36 (2010) and Volume 37 (2011) can be used in conjunction with the digest issued in January of 1994 and the earlier supplements previously issued.

See 2010 ALRB Case Digest Supplement and 2011 ALRB Case Digest Supplement.

Case Digest Merged

The Case Digest and its supplements through 2011 have been merged into one document.

See ALRB Case Digest.